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[2009] ZALCJHB 114
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Mofokeng and Others v JAC Pallets Africa CC and Others (J1990/07) [2009] ZALCJHB 114 (27 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT BRAAMFONTEIN)
CASE
NUMBER: J1990/07
In
the matter between:-
MOFOKENG,
JANTJIE & 12 OTHERS
Applicant
and
JAC
PALLETS AFRICA CC
First Respondent
JAC
PALLETS
Second Respondent
INTERNATIONAL
ESATE WINES (TAIWAN) CC
Third Respondent
INTERNATIONAL
ESTATE WINES
Fourth Respondent
INTERNATIONAL
ESATE WINES
(TAIWAN)
CC t/a JAC PALLETS
Fifth Respondent
JAN
GABRIEL KOEKEMOER
Sixth Respondent
COMMISSIONER
BONGE MASOTE
Seventh Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION (THE CCMA)
Eighth Respondent
APPLICATION
FOR LEAVE TO APPEAL
AC BASSON, J
[1]
This was an
application for leave to appeal to the Labour Appeal Court against an
order of this Court handed down on the 19 June
2008. Full reasons for
the order were also handed down. (I will hereinafter referred to
those reasons as "the judgment").
That order read as
follows:
"1)
The matter is postponed sine die to
allow the applicant to join the liquidator as an interested
party in
these proceedings.
2)The
applicant is ordered to amend its papers and serve an amended copy on
this court and the respondents within 10 court days
of the date of
this order.
3)The
applicant is ordered to pay the respondents wasted costs for today"
[2]
The Sixth
Respondent (hereinafter referred to as “the Respondent”)
opposed the application for leave to appeal. The
application for
leave to appeal was dismissed with costs. The Applicants requested
reasons for this order. Herewith brief reasons
for my order.
Condonation
[3]
The first ground upon
which this application was opposed was on the basis that the
application was late and not accompanied by a
condonation
application. Without going into detail, I am satisfied that the
application is not late and that no condonation is
needed. I will
therefore only deal with the merits of the application.
[4]
I should also
point out that the Applicants have made no attempt to comply with the
order granted on 19 June 2008. It would appear
that the
representative is not seeking to rectify their omission by appealing
the order. I have indicated to the representatives
that the tardiness
in complying with the order will result (and probably already
resulted) in a serious delay and will in effect
deny the individual
Applicants their right to a speedy resolution of the dispute. I
will return to this point hereinbelow.
Is
this order appealable?
[5]
The main
ground upon which leave to appeal was refused is on the basis that
the first two parts of the order are interlocutory in
nature and as
such do not constitute a final order and is thus not appealable.
Apart from this fact, the application has no merits
on the facts. I
will return to the latter aspect hereinbelow.
[6]
Section 173 of
the Labour Relations Act, No 66 of 1995 (hereinafter referred to as
“the LRA”) reads as follows:
"173
Jurisdiction
of
Labour
Appeal Court
(1)
Subject to the Constitution and despite any other law, the Labour
Appeal Court has exclusive jurisdiction-
(a)to
hear and determine all appeals against the
final
judgments
and the
final
orders
of
the
Labour Court; and
(b)
to
decide any question
of
law
reserved in terms
of
section
158
(4)."
[1]
[7]
In terms of
this section it is thus clear that where an order of this court does
not have the effect of a final order, it is not
appealable. The first
two parts of the order granted by this Court does not have the effect
of a final judgement and is thus not
appealable to the Labour Appeal
Court. It is only in the event of a final judgement or order
that a judgment will be
appealable
to the Labour Appeal Court. See in this regard the following from
Liberty Life
Association of Africa Ltd v Niselow
(1996) 17 ILJ 673 (LAC) at 676G-678D:
"The
question is one which has troubled other courts in various
circumstances down the ages. In many cases a court is called
upon to
make one or more preliminary decisions which may influence, and in
some cases even determine, its ultimate decision. The
problem arises
when a party seeks to correct one of those preliminary decisions on
appeal before the proceedings have run their
course. The question
which is generally asked in such cases is whether the particular
decision is appealable. Usually what is being
asked relates not to
whether the decision is capable of being corrected by an appeal
court, but rather to the appropriate time
for doing so. In effect the
question is whether the particular decision may be placed before a
court of appeal for correction in
isolation, and before the
proceedings have run their full course."
There
are two competing principles which come into play when that question
arises. On the one hand justice would seem to require
that every
decision of a lower court should be capable of not merely being
corrected, but of being corrected forthwith and before
any further
decisions are made in consequence thereof; while on the other hand
the delay and inconvenience which may result if
every decision is
subject to appeal as and when it is made may in itself defeat the
attainment of justice (see Schreiner JA in
Pretoria Garrison
Institutes v Danish Variety Products (PM Ltd
1948 (1) SA 839
(A) at
867-9). In that case the problem was considered in relation to
decisions of a procedural nature only, but those competing
principles
are equally relevant in a case like the present one. At 868 the
learned judge said that:
'It
has been widely felt, in different ages and countries, that a line
between appealable and non-appealable orders of this
preparatory
or procedural character ought to be drawn somewhere, for if they were
all appealable the delay and expense might be
excessive, while if
they were none of them appealable the injustice resulting from wrong
orders might be intolerable. No doubt
various considerations have
predominated in the minds of those responsible at different times for
drawing the line at one place
or another.
'"
Even
where the line distinguishing these two categories has been sought to
be drawn by the legislature, as in the section of the
Magistrates'
Courts Act 32 of 1944
which renders appealable rulings or orders
'having the effect of a final judgment', that line has succumbed by
judicial interpretation
to principles which by long experience have
been developed by the courts. Thus in Pretoria Garrison Institutes,
Schreiner JA said
of the statutory distinction referred to above that
the legislature 'must be taken to have had in mind the distinction,
recognised
in our cases, between what have been called simple
interlocutory orders and all other orders'. At 867 he continued as
follows:
'Presumably
the distinction has always arisen in association with the
interpretation of some statutory provision, ancient or modern
(the
judgment of the Chief Justice shows how old and deep-seated the
trouble is); but comment has overcome construction and to-day
it is
no longer possible to interpret the present or any corresponding
statutory provision by a straightforward application of
the ordinary
meaning of the words used
.'"
The
approach which has been taken in drawing the line between those
decisions which are subject to correction forthwith, and those
which
must await the outcome of the proceedings, has varied over time. In
earlier cases the enquiry seems to have been directed
primarily to
the extent to which the decision concerned was determinative of the
outcome of the proceedings. In the following passage
from Pretoria
Garrison Institutes at 869, Schreiner JA seems to have recognized
though that a clear and universal test would remain
elusive:
'If,
as appears to be the case, there is no single principle which has in
the past been uniformly applied in deciding which of these
procedural
orders are to be appealable and the most that we can find are
enumerations of the factors that have led different commentators
to
support different tests, the further question may be asked whether
there is any test that is specially indicated by considerations
of
justice. I do not think that there is.'''
The
Appellate Division has dealt with the problem on various occasions in
the context of s 20 (1) of the Supreme Court Act 59 of
1959, which
permits appeals from any 'judgment or order' of the court of a local
or provincial division. The distinction between
judgments and orders
is not really important, being one of form rather than substance (see
Van Streepen & Germs v Transvaal
Provincial Administration
1987
(4) SA 569
(A) at 5800; Zweni v Minister of Law & Order
1993 (1)
SA 523
(A) at 532D-F). What is in issue in each case is a 'decision'
of the provincial or local division concerned, emanating in one case
from trial proceedings and in the other from motion proceedings. The
more meaningful distinction, between those decisions which
are
appealable and those which are not, is one which has emerged from
judicial practice rather than from the legislation itself.
In
more recent times the approach taken has been increasingly flexible
and pragmatic, directed more to doing what is appropriate
to the
circumstances of the particular case than to elevating the
distinction to one of principle (see Van Streepen especially
at
585E-S86E; SA Eagle Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992 (2) SA
786
(A). In Zweni at 531J-532A, Harms JA described the modern
approach in the following terms:
'The
emphasis is now rather on whether an appeal will necessarily lead to
a more expeditious and cost-effective final determination
of the main
dispute between the parties and, as such, will decisively contribute
to its final solution.''
I
have already indicated that the contemporary approach is a pragmatic
one, which directs the enquiry towards what will more effectively
and
expeditiously contribute to the final solution, though the reluctance
of courts to deal with matters piecemeal ought not to
be overlooked.
Viewed from that perspective it seems to me that while it will
usually be a prerequisite for appealability that
the decision should
at least be final and definitive in its effect, and dispose of a
substantial issue, that may not always be
sufficient. There may be
cases where, notwithstanding this, the remaining issues to be decided
are of such a nature that it would
be more expeditious and
cost-effective to require the proceedings to run their course before
subjecting any of the court's decisions
to an appeal."
[8]
The Labour
Appeal Court in
Sacca
(PM Ltd v Thipe & Another
(1999) 20
ILJ
2845 (LAC) at 2846 to 2848, (the
Thipe
case) the
Honourable held as follows:
"
The appealability of interlocutory orders
[4]
For the purpose of this
judgment, it is necessary to deal with the meaning and nature of
interlocutory orders. I am called upon to decide whether this order
is appealable or not.
[5]
There can be no doubt that the
decision to allow the respondents to proceed on the merits,
notwithstanding the late filing of the statement of case, was an
order in the ordinary sense of the word which, if wrong, could
be
corrected on appeal. The real question is whether it can be corrected
forthwith and independently of the outcome of the main
proceedings or
whether the appellant is constrained to await the outcome of the main
proceedings before the decision can be attacked
as one of the grounds
of appeal in which event the decision of the Industrial Court under
consideration would be a pure or simple
interlocutory order or
ruling.
[6]
The question which is generally
asked is whether the particular decision is appealable.
Usually what
is being asked relates not to whether the decision is capable of
being corrected by an appeal court, but rather to
the appropriate
time for doing so. In effect the question is whether the particular
decision can be placed before a court of appeal
in isolation, and
before the proceedings have run their full course.' (Nugent J in
Liberty Life Association of SA Ltd v Niselow
(1996) 17 ILJ 673 (LAC)
at 676H.)
[7]
In determining the nature and effect of a
judicial pronouncement, not merely the form of the order
must be
considered but also, and predominantly, its effect. (See SA Motor
Industry Employers Association v SA Bank of Athens Ltd
1980 (3) SA 91
(A) at 96H.)
[8]
A judgment or order is a decision which, as
a general principle, has three attributes; firstly, the
decision must
be final in effect and not susceptible of alteration by the court of
first instance; secondly, it must be definitive
of the rights of the
parties; thirdly, it must have the effect of disposing of at least a
substantial portion of the relief claimed
in the main proceedings.
(See Zweni v Minister of Law & Order
1993 (1) SA 523
(A) at
532J-533A ; Van Streepen & Germs (PM Ltd v Transvaal Provincial
Administration
1987 (4) SA 569
(A) at 5861-587B.)
[9]
It follows, therefore, that unless an
interlocutory order has a final and definitive effect on the
main
action it is not a judgment or order. It amounts to a simple
interlocutory order which is not appealable. (See: SA Druggists
Ltd v
Beecham Group PlC
1987 (4) SA 876
(T) at 880B-C, a full bench
decision which was cited with approval in Zweni above.) Simple
interlocutory orders were equated with
rulings in Sistag Maschinen
Fabriek AG & another v Insamor (PM Ltd
1989 (1) SA 406
(T) at
408D-F. I endorse the view that their nature and effect are
essentially the same.
[10]
The courts have made a subtle shift from a strict
adherence to the abovementioned requirements and adopted a more
pragmatic and flexible approach to a situation where a party seeks to
appeal against some preliminary or interlocutory decision
which is
made by a court before it has arrived at a final conclusion on the
merits of the dispute between the parties. Harms AJA
had the
following to say in Zweni at 531J-532A:
'The
emphasis is now rather on whether an appeal will necessarily lead to
a more expeditious and cost-effective final determination
of the main
dispute between the parties and, as such, will decisively contribute
to its final resolution.
'
[11]
Having referred to this passage Mahomed CJ
captured the essence of the less rigid and modern approach
in the
following terms in Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at
730D-F:
'What
the court does is to have regard to all the relevant factors
impacting on this issue. It asks whether the decision sought
to be
corrected would, if decided in a particular way, be decisive of the
case as a whole or a substantial portion of the relief
claimed, or
whether such a decision anticipates an issue to be dealt with in the
main proceedings. The objective is to ascertain
what course would
best "bring about the just and expeditious decision of the major
substantive dispute between the parties'
(Pretoria Garrison
Industries v Danish Variety Products (PM Ltd
1948 (1) SA 839
(A) at
868; Van Streepen & Germs supra at 585E-J)’.”
[9]
Although the above decisions dealt
with the position under the now repealed
Labour Relations Act, the
same principle applies under the present
Labour Relations Act namely
that a flexible and pragmatic approach must be taken in order to
determine the effect of the order. Bringing an appeal now will
not
necessarily lead to a more and
cost-effective
final determination of the main dispute between the parties and will
not decisively contribute to its final solution.
Certainly, it also
will not bring about the just and expeditious decision of the major
substantive dispute between the parties.
In the present matter the
major substantive dispute is still pending before this Court and has
not yet been ventilated by this
Court.
[10]
The
Niselow
-
judgement
has been cited with the approval by the Labour Court deciding a
matter under the 1995
Labour Relations Act. See
Van
der Merwe v Du Plessis
(1999) 20
ILJ
1305 (LC) at 1308 stated:
"Section
166 of
the
Act gives any party to proceedings before the Labour Court the right
to apply for leave to appeal against 'any final judgment
or final
order'. There is no direct authority
of
which I
am
aware that
deals with the issue whether an order rescinding an earlier order
given by default and directing that the matter be heard
on an opposed
basis can be the subject
of
appeal. I
assume, however, that the normal test applies
-
that is,
whether the order in question finally disposes
of
the
proceedings between the parties, bearing in mind the tendency
of
the court
to apply this test in
a
pragmatic
manner: See Libertv Life Association
of
Africa Ltd
v Niselow
(
1996) 17
ILJ 673 (LAC)."
[11]
In terms of
the order granted on 19 June 2009, the matter was merely postponed
sine die
in the interests of fairness to allow the Applicant to join the
liquidator as an interest party. This is certainly not a final
order
and does not finally dispose of the proceedings between the parties.
As already pointed out, this Court has not yet had an
opportunity to
deal with the merits of the dispute between the parties. The papers
before this Court revealed that the
1
st
Respondent has been placed in voluntary liquidation. It is trite that
once an entity has been placed in liquidation, the liquidator
steps
in and becomes the relevant entity to deal with any claims against
the close corporation. The liquidator has not been joined
as an
interested party in the pending applications (and especially the
contempt of court application) despite the fact that the
Applicants
have been made aware of the fact that the 1
st
Respondent has been placed in liquidation. Despite what appears to be
a deliberate disregard of this fact, this Court has in fairness
allowed the Applicants to joint the liquidator. The Applicants have
decided not to do so. They will have to stand and fall by their
decision. The effect of the order is therefore not to finally dispose
of the matter. In fact, it does not dispose of the matter
in any way
at all. Furthermore, if the test, as referred to in paragraph [7]
supra
is
applied, namely whether or not the appeal will lead to the
“
the
more expeditious and cost-effective final determination of the main
dispute between the parties and, as such, will decisively
contribute
to its final solution”
,
this Court can come to no other conclusion that it will not. In fact,
as indicated to the representative, this appeal will have
the effect
of dragging this matter out even longer and will in effect deny the
Applicants their right to a speedy resolution of
their dispute.
[12]
In terms of
the second part of the order, the Applicants have been ordered to
amend its papers within 10 court days of the date
of the order. This
also does not have the effect of a final order. By no stretch of the
imagination can it be argued that this
order disposes of the main
dispute between the parties. In fact, this order has the effect of
assisting the parties to bring the
main dispute to a procedural point
where this Court may be placed in a position where it can hear the
merits of the dispute. It
is for the Applicants to decide whether or
not they want to amend their papers. The mere fact of their failure
to amend their papers
does not, in itself, dispose of the
application. At the very worst it may lead to the ultimate dismissal
of the matter but this
consequence does not flow from this order.
Even where the parties ultimately comply with the order, they still
have the remedy
of applying for condonation for the late compliance
of the order.
The
costs order of 19 June 2009
[13]
The only part of the
order which is final in effect is the costs order. The Applicants
have, however, not placed any reason before
this Court why this part
of the order is incorrect.
This
Court has decided to order the Applicants to pay the wasted costs of
the proceedings in light of the fact that the Applicants
were aware
of the fact that the 1
st
Respondent was placed in liquidation but despite this fact still
persisted in approaching this Court without joining the liquidator.
The Respondent was as a result placed in the unnecessary position to
oppose the application,
inter alia
,
on the basis of non-joinder. It does not, however, appear from the
application for leave to appeal that the Applicants are seeking
leave
to appeal against this order. It is therefore not necessary for me to
deal with the order as to costs.
[14]
The Application for leave to appeal is
therefore dismissed on this basis alone. I will return to the aspect
of costs hereinbelow.
The
merits of the application
[15]
Although it is
not necessary to evaluate the merits of the appeal in light of the
aforegoing conclusion that the order is not appealable,
I have
nonetheless briefly considered the merits of the appeal. In deciding
whether to grant leave to appeal to the Labour Appeal
Court, this
Court must consider whether or not there is a reasonable prospect
that another court
might
come to a
different conclusion to that of the court
a
quo.
In
Ngcobo v
Tente Casters
(Pty) Ltd
(2002) 23
ILJ
1442 (LC) at 1443A - B the Labour Court applied the traditional test
in deciding whether to grant leave to appeal, which is whether
there
was a reasonable prospect that another court might come to a
different conclusion. See also
Karbochem
Sasolburg (a division of Sentrachem Ltd) v Kriel & Others
(1999) 20
ILJ
2889 (LC) at 2890B where the Labour Court held as follows in respect
of the test:
"I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge
to ask whether
there is a reasonable prospect that another court may come to a
different conclusion. See North East Coast Cape
Forests v SAAPAWU &
Others (1997) 18 ILJ 729 (LC);
[1997] 6 BLLR 705
(LC) at 710A-B; NEWU
v E LMK Manufacturing (PM Ltd & Others
[1997] 7 BLLR 901
(LC) and
Landman & Van Niekerk Practice in the Labour Courts (service 1)
at A-41."
[16]
The
Applicants raised sixteen grounds for appeal. In terms of the first,
fourth and twelfth ground
[2]
it
is alleged that the Respondent is not in liquidation. It is, however,
clear from page 85 of the papers which contain the CIPRO
search that
the closed corporation has been placed in liquidation. The allegation
that the Respondent is in liquidation, is therefore
not
unsubstantiated on the papers. If the Respondent is not in
liquidation (as alleged by the Applicants), surely the liquidator
will be able to shed light on this crucial aspect. In terms of the
second and third grounds
[3]
it
is alleged that this Court erred in finding that the Applicants had
known that the Respondent was in liquidation. These grounds
are
without merit. It is clear from the papers that the close corporation
has been liquidated and that this fact was brought to
the attention
of the Applicants. No other court will therefore find differently on
this point. In terms of the fifth to tenth grounds
and thirteenth to
fifteenth grounds it is argued that this Court failed to grasp the
fact that Koekemoer was in control of the
operations of the
Respondent and that there is no proof of the fact that the Respondent
is in liquidation. All of these grounds
have no merit. On the face of
it the First Respondent is under voluntary liquidation and in order
to bring the matter properly
before this Court it is necessary to
join the liquidator to these proceedings. I am of the view that no
other Court will find differently.
I am in agreement with the
submission on behalf of the Respondent that it appears that the
representative of the Applicants simply
does not want to understand
why it is so important to have all the interested parties before
court in the main application. It
is trite that in law the liquidator
has stepped into the shoes of the First Respondent and must be
properly before the Court. If
the Applicant does not want to join the
liquidator it does not have to do so and can place the main
application before the Court.
If it fails to do so the Applicants
will, however, have to be prepared to bear the consequences of their
failure to do so.
Costs
of this application
[17]
In respect of
the order as to costs in respect of this application. This Court
makes costs orders in accordance with the requirements
of law and
fairness. See in this regard
Member
of the Executive council for Finance Kwazulu-Natal & Another v
Dorkin NO & Another
(2008) 29 ILJ 1707 (LAC) where Zondo, JP held as follows:
"The
rule of practice that costs follow the result does not govern the
making of orders of costs in this court. The relevant
statutory
provision is to the effect that orders of costs in this court are to
be made in accordance with the requirements of the
law and fairness.
And the norm ought to be that cost orders are not made unless those
requirements are met. In making decisions
on cost orders this court
should seek to strike
a
fair
balance between, on the one hand, not unduly discouraging workers,
employers, unions and employers' organizations from approaching
the
Labour Court and this court to have their disputes dealt with, and,
on the other, allowing those parties to bring to the Labour
Court and
this court frivolous cases that should not be brought to court. That
is
a
balance
that is not always easy to strike but, if the court is to err, it
should err on the side
of
not
discouraging parties to approach these courts with their disputes. In
that way these courts will contribute to those parties
not resorting
to industrial action on disputes that should properly be referred to
either arbitral bodies for arbitration or to
the courts for
adjudication. "
[18]
In the
previous application the Respondents were dragged to this Court
unnecessarily and there was no reason why costs should not
have been
awarded. In any event, as already pointed out the issue of costs did
not form part of the grounds for leave to appeal.
In respect of the
present application there is also no reason why costs should not
again be ordered against the Applicants. I cannot
lose sight of the
fact that this matter could have been and should have been finalised
long ago. Furthermore, the Applicants have
brought a totally baseless
application for leave to appeal. Again I am of the view that it was
unnecessarily to have dragged the
Respondent again to court. In the
event the Applicants are ordered to pay the costs.
AC
BASSON,J
Date
of reasons:
27
July 2009
For
the Applicants
:
Mr. Z Gobile of Karabo Labour Organisation
For
the Respondents
:
Adv. DG Graham of Graham Attorneys
[1]
Own
emhasis.
[2]
"By
upholding the sixth respondent's unsubstantiated allegation, in that
the first respondent was liquidated although the
Applicant's had
placed in the papers adequate and sufficient facts to rebut such a
bald and a unsubstantiated allegation";
and "By making a
finding that the Ladyship-could not proceed with the matter when the
"Liquidator" was not joined
as a party, although there was
no proof before the court (except a bald allegation) that a
Liquidator had been appointed";
and; "By placing on the
Applicant's the onus to prove that there was no liquidation instead
of placing the onus on Mr Koekemoer
to prove that there was a
liquidation, " and; "By unilaterally postponing the matter
and then apportioned the blame
on the Applicant's whereas Mr
Koekemoer did not place before the Court admissible proof that the
first respondent was liquidated
or that a liquidator was appointed.”
[3]
"By
making
a
finding
that on their dismissal the Applicant's had known that the first
respondent was under liquidation, whilst the papers before
the Court
indicates that Mr Koekemoer had taken
a
decision
to close down the first respondent and fails dismally to show if the
first respondent was ever liquidated, " and
“And also
that documents given to the Applicants when dismissed were not
signed or issued by a “liquidator”
but by Koekemoer
himself which aspect clearly shows that the sixth respondent was
still in charge of the companies.”